Solomon Ogboh & Anor V. The Fed. Republic Of Nigeria (2002)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

This appeal is against the judgment of the Miscellaneous Offences Tribunal, Kaduna Zone, which found the appellant and one Steven Alele guilty of dealing in 198.5 kilograms of indian hemp otherwise known as Cannabis Sativa without lawful authority contrary to section 10(c) of the National Drug Law Enforcement Agency Decree No. 48 of 1989. Both accused persons were sentenced to a minimum of 15 years imprisonment each with a recommendation that the sentences be reduced to 10 years imprisonment each.

They were dissatisfied with the whole decision and appealed to the Court of Appeal. Their appeal was dismissed hence the further appeal to this court. The facts of the case are contained in the examination-in-chief of the P. W. 2 – police sergeant no. 36338. Zabairu Ahmed attached to Rigachikun Police Station, Kaduna, who arrested both accused persons with bags of the said indian hemp.

He testified as follows:-

“…I know both accused persons. On 13-9-91 on Friday at 8.30 a.m. I was from Mararaban Jos, Jos road near Ajarobas garage. I saw 8 bags of garri on the side of the road on a polythene. I saw the garri pouring and on closer look it was black. I asked for the owner of the goods. Solomon kept silent but a commission agent pointed at him (Solomon) and asked him why I was asking for the owner of the goods and he kept mute. He said he was calling me but I did not see him. I asked him where he was from. He said he was from Ondo State. I asked what was in the bags of garri. He said it was business. He said the bags contain leaves. I asked what type of leaves He said I should understand. I asked for his name again and he said Solomon. I asked him how many of them are traveling with the goods. He asked why I was asking him. I told him that I saw a man running to the back of the house. He said the goods belonged to him. I showed him my identification card that I am a policeman living in the area. I told him that I was taking him to my master for investigation. I took him together with the bags of garri to the police station, Rigachikun. I came back to Mararaban Jos and told the commission agent that I suspected that Solomon was not alone. I instructed him to arrest whoever came looking for Solomon or enquire (sic) about the garri. On 14/9/91 in the evening when one of the commission agents informed me that somebody was looking for Solomon, I followed him to where the person making the enquiry was. I asked him for his name, he said Steven…I asked him whether he was not the one who ran away when I got hold of his relation. He took to his heels again and he was pursued and arrested.”

This is the evidence of an eye-witness (P.W.2). The evidence of the other eight prosecution witnesses made up of investigating police officers and the Food and Drug Analyst of the National Drug Law Enforcement Agency are formal. The commission agent was not called to testify by the prosecution. Both the appellants and the respondents filed their respective briefs of argument. The appellants submitted four issues for determination in their joint brief of argument:

(a) Whether the learned Justices of the Court of Appeal were right when they held that the non-service of the hearing notice on counsel for the appellants, consequent upon which appellants were practically compelled to defend themselves personally was not a fundamental vice which affected a fair hearing of this charge and therefore, did not constitute a wrongful exercise of the trial courts (sic) discretion.

(b) Whether possession of indian hemp actual or constructive was proved against any of the appellant (sic) beyond reasonable doubt.

(c) Whether the learned Justices of the Court of Appeal were right when they held that on the state of the evidence adduced at the trial, a case was made out against the 2nd appellant to justify his conviction having regard to the burden of proof.

(d) Whether the conviction of the appellants could be justified in view of the totality of evidence adduced at the trial.”

The respondent is of the view that the appeal can effectively be determined on the following issues. It adopted the appellants’ issue (1) and its second issue reads:

“Whether the learned Justices of the Court of Appeal were right in holding that on the state of evidence adduced at the trial court, a case of possession was made against the appellants to justify their conviction having regard to the burden of proof.”

It would appear that the two issues are sufficient and cover the other two issues identified by the appellants. I have no hesitation in accepting the two issues for the purposes of determining the appeal. Starting with issue (1), it was the contention of the appellants’ counsel that on 14-7-92, the accused persons were present in court but both the prosecuting and the defence counsel were absent and the tribunal adjourned the case to 20-7-92 for hearing and ordered that hearing notices be served on both counsel. That on 20-7-92, the tribunal proceeded with the hearing of the case even though it was duly informed that the defence counsel had not been served any hearing notice. He submitted that this is a breach of the rule of audi alteram partem which, except, in few statutory exceptions, will invalidate the proceedings as it is a breach not only of the right to fair hearing entrenched in our constitution but also a breach of the rule of natural justice. He referred the court to the cases of Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104 at 115-116, Obimonure v. Erinosho & Or. (1966) 1 ALL NLR 250 and Craig v. Kanseen (1943) 1 ALL E. R. 108 at 113. He further submitted that where service of process is required, failure to serve the same is a fundamental vice and the person affected may have the order set aside and this case being criminal proceedings where the liberty of citizens was at stake, the chairman of the tribunal ought to have exercised her discretion to adjourn the matter for more efforts to be made at service on the counsel for the accused persons who had prior to 20-7-92 attended the court on almost every adjournment notwithstanding that most of the adjournments were at the instance of the prosecution.

Submissions were made to the effect that the accused persons are not lawyers and were not aware of their right to ask for adjournment, that they were in custody throughout the trial and that the holding by the Court of Appeal that the appellants waived their right when the trial commenced and evidence taken without complaining was erroneous. The court was referred to the case of Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 at 197.